Mathata General Trading v Head of Department Mpumalanga Department of Education
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | TV Ratshibvumo J |
| Judgment Date | 05 August 2022 |
| Docket Number | 1352/2022 |
| Hearing Date | 26 July 2022 |
| Court | Mpumalanga Division, Mbombela |
| Citation | 2022 JDR 2238 (MN) |
Ratshibvumo J:
The Application.
This application was enrolled to be heard on urgent basis, as envisaged by Rule 6(12) of the Uniform Rules of the High Court. The Applicant seeks relief in the following terms:
That the First and/or Second Respondent's (the Respondents) decision on 14 June 2022 to "insource" the supply of food to boarding schools within the Mpumalanga Province be reviewed and set aside;
That the First Respondent termination notice dated 22 June 2022 which terminates the Applicant's contract with the Department of Education under contract no. EDU/059/13/MP be declared unlawful and void;
That the Respondent be found to be in contempt of court order, issued out of this Honourable Court on 12 April 2022 by the Honourable Madam Justice Greyling-Coetzer AJ;
That the Respondents be committed to imprisonment for contempt of court for a period of 30 days;
That the above prayer supra be suspended until the litigation under case no. 1352/2022 has been finalised.
2022 JDR 2238 p3
Ratshibvumo J
Should the Respondents fail to comply with this order, the Applicant should be allowed to approach this court for an order for the Respondent' committal to prison, on the same papers, supplemented if necessary.
That the Applicant be granted leave to supplement its papers, should the need arise.
That the Respondents be ordered to pay the costs of this application on an attorney and client scale including the costs of two counsel.
Background.
Following is the background that led to this application. Although the papers are silent on the history of the relationship between the Applicant and the Respondents, all indications are that the Applicant had a contract with the Department of Education, Mpumalanga (the Department) under contract no. EDU/059/13/MP inter alia to supply food at boarding schools in Mpumalanga Province. This contract has since lapsed. What remained was a month-to-month contract renewal with the understanding that should the contract not be extended, the Department shall give the Applicant 30 days' notice of its intention to not renew the contract.
The Department did send such a letter on 22 June 2022 to the Applicant. This letter was referred to as a letter of termination of contract in the founding affidavit. It is this letter that aggrieved the Applicant and set this application in motion. Both parties agree that the application is urgent given the limited time left before the implementation of the decisions by the Respondents.
Prior to launching this application, the Applicant brought an urgent application against the Respondents in this case under the same case number (the first urgent application). The Department had on the 13th October 2021 advertised a tender inviting parties interested in supplying and delivering dry food products, fresh
2022 JDR 2238 p4
Ratshibvumo J
fruits and vegetables to quintile 1-3 primary, secondary and special schools (including boarding schools) falling under the Department, to apply. The contract would last for a period of three years.
At the time, the Applicant was one of the parties contracted to offer these services as indicated above. In the first urgent application, the Applicant sought an order declaring that Tender Bid Invitation No. EDU150/21/MP and the decision to publish it, was unlawful, unreasonable and inconsistent with the legislative frame work and section 217 of the Constitution. The Respondents agreed to have the tender set aside albeit for different reasons, and a draft consent was made an order of court on 12 April 2022.
Strange as it may be, in terms of the "Consent Order," the Respondents agreed not to proceed with the tender process under Bid Number EDU/150/21/MPU "pending the outcome of this litigation." The matter was therefore postponed to 25 October 2022 to provide interested parties an opportunity to take note of the application and for anyone of them interested in opposing the application to enter a notice to oppose the application. It is this consent order that gave rise to the application for the Respondents to be held in contempt of court.
The "insourcing" of services.
The current application was kick started when the deponent to the Applicant's affidavit (Mr. Mashile) came across an internal memo of the Department that suggested that on 14 June 2022, the Department took a decision to "insource" the supply of food to boarding schools within the Mpumalanga Province. No details were given as to how he came to be in possession of this memo, but unsurprisingly, he must be having eyes within the Department. The said memo is said to originate from the Department's Chief Director – Finance. The contents of the memo, as well as the decision referred to therein are not in
2022 JDR 2238 p5
Ratshibvumo J
dispute. Because of its importance to this application, it is necessary to quote it in full. It reads, [1]
"Good morning colleagues, I hope this finds you well.
Hope we are well aware of the decision by management that was finalised on 14 June 2022 at MRTT hotel school that the Department will insource the supply of food to all our boarding schools.
The Head of Department has issued the 30 days' notice to all affected contractor on the supply of food to boarding schools and has indicated that the new system will start on the 1st of August 2022.
A program to implement this project is done and is being implemented and:
As part of the implementation plan, the CD: Financial Management will visit all six boarding schools as per below mentioned program. The purpose of the visit is to assess the readiness and the capacity of each boarding school to handle this function and make proposal for uniform system. The assessment will include among others:
Existing record keeping and operating systems,
Receiving of food stock,
Daily issuing of stock for cooking,
Safety of food stock from theft,
Handling of perishable stock (including cold storage),
Stock ordering systems,
Daily menus – with view to review
The District offices are expected to send at least one official, preferably from SCM to join the CD in this assessment. This process will then be followed by a joint meeting with all the Principals and SGB chairpersons to finalise the processes and memorandum of understanding by Tuesday the 12th, July 2022.
The visit to boarding schools will take place on the 28th, 29th June is Gert Sibande District, 30th June and 01 July, Nkangala Districts and the 5th July is Thaba Chweu Boarding School and 6th July is Shongwe Boarding School.
You are requested to provide the CD: Finance with names of officials per district that will assist this process on the dates proposed above.
NSNP – The NSNP program should prepare to include these boarding schools as an additional scope of work to the current service providers on affected circuits. This
2022 JDR 2238 p6
Ratshibvumo J
means the NSNP service provider must be identified, notified and be given the necessary numbers of students and delivery schedules.
The office of the CFO remains responsible for coordinating this whole process and therefore any inquiry should be communicated to Thenjiwe Nxumalo @ 013 766 5299 and th.nxumalo@mpuedu.gov.za.
Your cooperation in this regard will be appreciated."
The understanding and/or the interpretation Mr. Mashile attached to this memo is clear from the founding affidavit when he says, "[w]hat this means is that service providers who are providing food products to primary and secondary schools, and not boarding schools, will now be appointed to also provide food to boarding schools. Contrary to the usual meaning of the word, "in source," outside service providers will still be delivering the service and food…
Accordingly, if service providers are appointed contrary to the provisions of section 217 of the Constitution, not only would it have occurred without a tender bid invitation to provide food for disadvantaged learners at boarding schools, but there exists the real possibility that the wrong and incapable service providers will be appointed to the detriment of disadvantaged learners." [2] He concluded therefore that the Respondents have appointed service providers to provide food to boarding schools without going through a tender process and in so doing, they were in contempt of court. This was with reference to court order granted by consent under the first urgent application.
With that understanding, the Applicant wrote to the Department informing it that its letter of termination of the contract was unlawful and void. The Applicant further demanded an undertaking from the Department that it will be allowed to continue with the services of supplying food to the boarding
2022 JDR 2238 p7
Ratshibvumo J
schools until the litigation in the first urgent application was finalised. When that undertaking was not...
To continue reading
Request your trial